Citation Nr: 0029160
Decision Date: 11/06/00 Archive Date: 11/09/00
DOCKET NO. 99-16 570 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to former prisoner of war (POW) status for
Department of Veterans Affairs (VA) purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Odlum, Associate Counsel
INTRODUCTION
The veteran had recognized guerilla service from February
1945 to March 1945.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an April 1999 rating decision from the Manila,
Philippines Department of Veterans Affairs (VA) Regional
Office (RO).
The Board has recharacterized the issue as written above from
the certified issue of whether a claim for death benefits may
be reopened based on the veteran's status as a former POW.
The Board has recharacterized the issue because the record
indicates that the appellant's initial claim for dependency
and indemnity compensation never became final, as has been
indicated by the RO.
The Board also notes that it retains jurisdiction over the
issue of POW status, as it is an issue that has been
specifically appealed by the appellant (in addition to her
general claim for cause of death). Her most recent claim was
based on her contention that the veteran had POW status, she
has disagreed with the RO's determination that the veteran
was not a POW for VA purposes, the RO has adjudicated this
issue (and provided the appellant with the laws and
regulations pertaining to this issue), and the appellant
perfected her appeal with the submission of the VA Form 9.
The issue of entitlement to service connection for the cause
of death is addressed in the remand portion of this decision.
This issue is not inextricably intertwined with the issue of
POW status because the outcome of the issue of service
connection for the cause of death will have no impact on the
determination of whether or not the veteran ever had POW
status.
FINDINGS OF FACT
1. The service department has not verified that the veteran
was in active service when he was reportedly captured in
April 1942 by Japanese forces.
2. The service department has certified that the veteran did
not have POW status during his recognized guerilla service.
CONCLUSION OF LAW
Entitlement to recognition as a former POW for VA purposes
has not been established. 38 U.S.C.A. § § 101(2)(24), 107,
5107(West 1991 & Supp. 2000); 38 C.F.R. § § 3.1(y), 3.8,
3.9, 3.203(c) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
In his April 1968 claim for compensation or pension, the
veteran reported serving from June 1941 to February 1947.
In a VA Form VB8-4169 (received by the RO in April 1968), the
veteran indicated that he was a POW in Bataan in 1942.
In his Affidavit for Philippine Army Personnel the veteran
reported being a POW in Bataan from April 9, 1942 to April
11, 1942. He indicated that he was serving in the 2nd
Regular Division of the Philippine Constabulary (PC) at the
time he was captured.
In September 1968 the service department determined that the
veteran had recognized guerilla service from February 1945 to
March 1945. It noted that his unit during this time was C
Company, San Antonio Section, Squadron C, ZMD. It
specifically concluded that the veteran had no POW status.
In an affidavit dated from February 1969, an individual
certified that he personally knew of the veteran and that
both he and the veteran were POWs in Bataan in April 1942.
He noted that the veteran was serving in G Company , 2nd
Battalion, 2nd Division, PC.
The veteran passed away in August 1970.
In October 1975 the RO received enlistment records dated from
May 1953 indicating that the veteran was a POW from April 9,
1942 to April 11, 1942.
The RO also received a January 1974 certification from the
Assistant Adjutant General of the Philippine Army. This
individual certified that the veteran was inducted into the
United States Army Forces in the Far East (USAFFE) in
November 1941 and that he was assigned with the 2nd Regular
Division of the PC. It also certified that he was a POW from
April 9 to April 11, 1942.
In October 1998 the appellant submitted her current claim for
DIC benefits, contending, in pertinent part, that she was
entitled to such benefits based on the veteran's status as a
former POW.
A copy of the Philippine Affidavit for Army Personnel was
subsequently submitted. In addition, an affidavit was
submitted from an individual certifying that he was POW in
the same group as the veteran in April 1942.
Criteria
The threshold question that must be resolved with regard to a
claim of entitlement to VA benefits is whether the appellant
has established eligibility. In this case, to become
eligible for 38 U.S.C.A. § 1112(b) benefits the appellant
initially must show that the veteran was a former POW as
enumerated in 38 U.S.C.A. § 101(32) and 38 C.F.R. § 3.1(y)
(2000).
If the appellant does not submit the appropriate evidence,
her claim fails due to the absence of legal merit or lack of
entitlement under the law and, as such must be denied as a
matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994).
38 C.F.R. § 3.1(y) defines a former prisoner of war as a
person who, while serving in the military, naval, or air
service, was forcibly detained or interned in the line of
duty by an enemy or foreign government, the agents of either,
or a hostile force. In the case of detention or internment
by an enemy government or its agents, VA shall accept the
findings of the appropriate service department that a person
was a prisoner of war during a period of war unless a
reasonable basis exists for questioning it.
"In line of duty" means an injury or disease incurred in or
aggravated during a period of active military, naval, or air
service unless such injury or disease was the result of the
veteran's own willful misconduct. 38 C.F.R. § 3.1(m)
(2000).
38 C.F.R. § 3.203 provides only two methods of establishing
active military service: either by submission of a document
issued by a service department or through verification of
claimed service by such a department.
In relation to Philippine service, 38 C.F.R. § 3.9(a)
provides that the period of active service for a Regular
Philippine Scout or a member of one of the regular components
of the Philippine Commonwealth Army while serving with the
Armed Forces of the United States will be from the date
certified by the Armed Forces as the date of enlistment or
date of report for active duty whichever is later to date of
release from active duty, discharge, death, or in the case of
a member of the Philippine Commonwealth Army June 30, 1946,
whichever was earlier. Release from active duty includes (1)
leaving one's organization in anticipation of or due to
capitulation, (2) escape from prisoner-of-war status, (3)
parole by the Japanese, (4) beginning of missing in action
status, or (5) capitulation on May 6, 1942, except that
periods of recognized guerrilla service or unrecognized
guerrilla service under a recognized commissioned officer or
periods of service in units which continued organized
resistance against Japanese prior to formal capitulation will
be considered return to active duty for period of such
service.
Guerrilla service is defined as persons who served as
guerrillas under a commissioned officer of the United States
Army, Navy, or Marine Corps, or under a commissioned officer
of the Commonwealth Army recognized and cooperating with the
United States Forces. The following certifications by the
service departments will be accepted as establishing
guerrilla service; (1) recognized guerrilla service and (2)
unrecognized guerrilla service under a recognized
commissioned officer only if the person was a former member
of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army. This excludes civilians.
38 C.F.R. § 3.8(d). The active service of members of
irregular forces guerrilla will be the period certified by
the service department. 38 C.F.R. § 3.9(d).
The United States Court of Appeals for Veterans Claims
(Court) has held that VA is prohibited from finding, on any
basis other than a service department document, which VA
believes to be authentic and accurate, or service department
verification that a particular individual served in the
United States Armed Forces.
Service department findings, therefore, are binding on VA for
purposes of establishing service in the United States Armed
Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992);
Cahall v. Brown, 7 Vet. App. 232 (1994) (holding that only
official service department records can establish if and when
an individual was serving on active duty, active duty for
training, or inactive duty training).
When a service department finds that a person had been a POW,
that determination is binding on VA "unless a reasonable
basis exists for questioning it." 38 C.F.R. § 3.1(y)(1)
(2000); see also Young v. Brown, 4 Vet. App. 106, 108 (1993).
However, § 3.1(y)(1) does not require VA to follow a service
department's finding that a veteran was not a POW. Former
POW status can be recognized on the basis of evidence other
than service department findings. See Manibog v. Brown, 8
Vet App 465 (1996); VAOPGCPREC 14-94.
Analysis
The Board finds that, based on a review of all the evidence
of record, the veteran has not met the POW status eligibility
requirements set forth above.
The Board notes that the service department certified in
September 1968 that the veteran's valid service was
recognized guerilla service from February 1945 to March 1945.
The service department found that he had no POW status.
It has been reported that the veteran was a POW during
periods of service not certified by the service department
(April 1942). It has been alleged that he was a POW during a
period prior to his certified date of entry into service as a
recognized guerilla. As was stated above, service department
findings are binding on VA for purposes of establishing
service in the United States Armed Forces. Duro, Cahall
supra.
This includes establishing if and when an individual has
service in the United States Armed forces. See Cahall,
supra. Therefore, in this case, a determination of POW
status can only be made during the period certified by the
service department, from February 1945 to March 1945, or
during the period immediately following release from
recognized guerilla service. See Cahall, supra; 38 C.F.R. §
3.9(b) (2000).
The Affidavit for Philippine Army Personnel details the
veteran's status from July 1941 to April 1945. It has been
reported in this document and other documents in the record
that the veteran was a POW in April 1942.
In September 1968 the service department certified that the
veteran did not have POW status during his service as a
recognized guerilla from February 1945 to March 1945.
The appellant's claim of entitlement to former POW status
must therefore be denied as a matter of law because she has
not provided a reasonable basis for questioning the service
department's conclusion. There is no evidence indicating
that the veteran was a POW during the period of service
certified by the service department or during the period
immediately following his release from recognized service.
In light of the above, the Board concludes that the probative
evidence of record is against the claim of entitlement to
former POW status.
Based on the evidence of record, the Board finds an
additional request for verification of service is not
warranted, as the records submitted subsequent to the service
department's verification contain essentially the same
information pertaining to the veteran's service that was
already on file at the time verification was made. See
Sarmiento v. Brown, 7 Vet. App. 80 (1994). In view of the
foregoing, the appellant's claim of entitlement to former POW
status for VA purposes lacks legal merit and must therefore
be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994).
The appellant's proper remedy, if any, regarding service
verification of the veteran's alleged period of POW
internment may be an application to the Army Board for the
Correction of Military Records. Cahall, supra.
ORDER
Entitlement to former POW status for VA purposes is denied.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
In October 1973 the appellant filed her original application
for DIC benefits. In December 1973 the RO denied entitlement
to service connection for the cause of the veteran's death
and entitlement to nonservice-connected death pension.
In January 1974 the RO received a statement from the
appellant in which she wrote that the rating decision was
"unjust and inhuman," specifically contending that the
cause of the veteran's death should be service-connected.
She did not refer to entitlement to nonservice-connected
death pension.
The Board is of the opinion that the January 1974 constituted
a valid notice of disagreement (NOD) with the RO's December
1973 denial of service connection for the cause of the
veteran's death as it can reasonably be construed as
expressing disagreement with the RO's denial of service
connection for the cause of the veteran's death. 38 C.F.R.
§ 20.201 (2000); see also 38 C.F.R. § 19.113 (1973).
However, there is no indication that the appellant was ever
provided with a Statement of the Case (SOC) pertaining to the
claim for service connection of the cause of death.
There is no SOC on file providing the appellant with notice
of the laws and regulations pertaining to this issue, even
with respect to her current claim. The only laws provided
pertain to POW status and new and material evidence.
When there has been an initial RO adjudication of a claim and
an NOD has been filed as to its denial, the appellant is
entitled to an SOC, and the RO's failure to issue an SOC is a
procedural defect requiring remand. Manlincon v. West,
12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398,
408-10 (1995); see also Bernard v. Brown, 4 Vet. App. 384
(1993).
Because no SOC was issued with respect to the appellant's
claim for service connection of the cause of death, the
December 1973 rating decision never became final and remains
pending. Therefore, the issue on remand is whether
entitlement to service connection for the cause of death is
warranted. The issue is not whether new and material
evidence has been presented to reopen this claim.
Accordingly, this case is remanded to the RO for the
following:
1. The appellant should be notified that
she may submit additional evidence and
argument in support of the issues on
appeal in accordance with 38 U.S.C.A.
§ 5103(a) (West 1991). Kutscherousky v.
West, 12 Vet. App. 369 (1999). All
pertinent evidence received should be
associated with the claims file.
2. The RO will take such development or
review action as it deems proper
regarding the issue of entitlement to
service connection for the cause of the
veteran's death.
3. If such action does not resolve the
disagreement either by granting the
benefit sought or through withdrawal of
the notice of disagreement, such agency
shall prepare a statement of the case. A
reasonable period of time for a response
should be afforded.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the appellant
until she is notified by the RO.
RONALD R. BOSCH
Veterans Law Judge
Board of Veterans' Appeals